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We return to probably the most contentious clause in the Bill. I will keep my comments mercifully short because we know the arguments quite well and other noble Lords wish to participate in this debate.
Of course we all offer our deepest sympathy to families who have lost a loved one, but I passionately believe that we have a duty to frame a law that is workable and will deliver justice. Under the clause, a prison sentence can be imposed for something that was purely an accident and simple carelessness. Jail is not a suitable punishment for an act of carelessness. The provision will result in the criminalisation of many ordinary members of society. Of vital importance is the absence of criminal intent, which is necessary in the conviction of other crimes that carry similar custodial sentences. Careless driving is very different from dangerous driving and from carelessness resulting from taking drink and drugs, even though the effects of those offences may be similar.
Under the current wording, a person would be guilty of careless driving if their driving fell below what would be expected of a careful and competent driver. That is markedly different from the test of culpability for dangerous driving. To be convicted of dangerous driving, a driver must have been driving in a way that, to a competent and careful driver, would be obviously dangerous—in other words, doing something that they know they should not be doing. There is no such requirement for the new offence of causing death by careless or inconsiderate driving. Instead, a person may commit the offence not only without intent but without even realising the nature of such carelessness.
We are not arguing for this new offence to be struck from the Bill; we are trying to ensure that the punishment fits the crime. Importantly, the punishment should reflect the standard of driving, not the consequences. We therefore cannot and will not support this excessive punishment proposed by the Government. A custodial sentence is a completely disproportionate punishment for such an offence. This amendment therefore would remove the custodial element from the Bill. Furthermore, it should be left to the courts not the Government to decide the severity of the punishment and the actual offence committed.
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Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 6, leave out “agree” and insert “disagree”.—(Lord Hanningfield.)
Earl Attlee: My Lords, I remind the House of my interest as president of the Heavy Transport Association; I am also close to other trade associations. I believe that transport Ministers of all Governments, including this one, have made the right decisions over the years and that is why we enjoy one of the best road safety records in Europe. But the Government have gone wrong on this one.
The Minister talked about support from interest groups, but he will recognise that, because nearly all the key personnel in these interest groups have suffered personally from road traffic accidents, they are not exactly neutral. The whole of Clause 20 is highly undesirable; it will have unintended consequences, which I described in detail when the Bill passed through your Lordships’ House and we considered this government amendment. But we need to remember that the provision was not in the Bill when it started in the House of Commons before the general election; it was not even included when it came to your Lordships’ House after the election, despite the manifesto commitment and the fact that it was relatively easy to draft.
The Commons amendment provides for prison sentences, even at the magistrates’ court; this would be on top of automatic disqualification. The problem is that, because some of the penalties—a fine, disqualification and prison—are mandatory rather than optional, so that the court would have to disqualify the driver, for example, the defendant would be encouraged to plead not guilty and opt for trial at the Crown Court. Worse still, if the driving error was very minor, the jury might well acquit, if only because they know that disqualification is automatic but inappropriate because the error was so minor.
Finally, when a motorist who is normally very careful, competent and a perfectly decent member of society loses his licence for a momentary lapse—no matter how tragic the consequences—confidence in the system of motoring justice will crumble and we will run the risk of seeing lower levels of compliance in general. The Government have failed to explore other means of meeting the needs of the bereaved and perhaps of making it easier to secure conviction for dangerous driving.
Realistically, the Minister has Clause 20 in his pocket because it is already in the Bill—we cannot stop that. He may eventually succeed with his amendment, but I believe that in the long term he will regret insisting on the Commons amendment. I hope that my noble friend takes it to a Division; I will support him in the Division Lobby.
The Earl of Mar and Kellie: My Lords, I continue to be unnerved by the issue of intent and therefore must continue to oppose the Government’s position.
Lord Lyell of Markyate: My Lords, I have always been grateful to the Minister and his colleagues for the courtesy with which they have accepted my
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This clause will do two things. It is wrong in principle and is likely to do serious injustice. A third point is that it is likely to confound expectations—people will be disappointed at the extent of its effect, because it will be terribly unjust. To put unjust measures on the statute book is a deep mistake which devalues the effect of justice for those who have been rightly sent to prison for dangerous driving. They will simply say, “It’s a lottery”.
Why is it wrong in principle? Nowhere in this country, except in the most arcane areas, do we send people to prison for ordinary negligence. I was astonished to read the Secretary of State say in the other place, as the basis of his argument, that taking a life is taking a life, no matter how it is done—in other words, the fact that, tragically, careless driving leads to a death means that there ought to be a prison sentence available. We do not take that view. Will that view apply to industry, where employees are sometimes tragically killed because of a breach of the Factories Act? Will it be taken in construction, or education when people take children on trips? Will it be taken in medicine or in transport generally? It is contrary to principle in this country to send people to prison unless you reach the broad standard of gross negligence. Ordinary negligence—ordinary carelessness—sad though it is and tragic though it can be, is something for which we do not send people to prison, and we are entirely right.
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Secondly, there is likely to be serious injustice because the clause blurs the at present very clear distinction between dangerous driving and careless driving. Dangerous driving is driving that falls far below the standards to be expected of a competent and careful driver in circumstances where it would be obvious to a reasonable driver that what they were doing was dangerous. In other words, it has an element of intention or recklessness. If that is the case, it would be perfectly right and proper that a prison sentence should be available and sometimes imposed—and, indeed, that sometimes a very severe prison sentence should be imposed.
I am in no way soft on this issue. I commend the Government’s actions in relation to speeding, which are doing a lot of good. When I was Attorney-General, I—like my predecessor—brought a number of cases before the Court of Appeal and sentences in practice were greatly increased. A lot of right and proper things have been going on and are being maintained by this Government, but this is a very serious mistake. How will defendants know how to behave? They will find themselves accused of dangerous driving, but they will be equally likely to be sent to prison if found guilty of careless driving. How will they know what the ingredient of dangerous driving is and where the line comes between that and careless driving? How will they know which aspect the prosecution is saying is the real nub of the matter?
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At present and very properly, the Crown Prosecution Service has to decide whether there is sufficient credible evidence to give rise to a realistic prospect of conviction for dangerous driving or careless driving before bringing such a case. When the case is presented, the essential ingredients are stated to the court, the defendant knows what he has to meet, and justice can be done. This will blur that situation. The defendant will not know until the sentence is given where the nub of the matter lies. As my noble friends have said—I strongly support what they have said from their practical experience—this will have unintended consequences. There is a serious danger that more people will be unwilling to plead guilty. There is also a danger that juries, thinking that this is an unfair law, will acquit in circumstances where someone might even have pleaded guilty if they had not felt it necessary to air the whole matter.
It saddens me tremendously to see the Government going down a route that will lead to serious injustice. The hour is late and I have put the essential points. I very much hope that the Government will not sit on what was a purely technical oversight in this House and cling to their five years in the Crown Court simply because an amendment was not moved. I had not understood that that was remotely the Minister’s intention. I thought that we were at least being allowed to debate the matter so that it could be handled properly one way or the other. It would be a great mistake to introduce a prison sentence for careless driving when, very sadly, a death has followed a case of carelessness. It does not help a tragedy to compound it with an injustice.
Lord Monson: My Lords, however well it may play with a section of the tabloid press, the Government’s plan to send still more people to prison in a week when the British prison population has reached an all-time high is surely the height of folly. At this rate, we will need not only prison ships but also prison railway carriages parked in disused sidings. The Minister said that if the amendment is carried, the penalty would be no more severe than that for simple careless driving. But the Minister is wrong, as the noble Earl, Lord Attlee, pointed out, because there would be automatic disqualification for at least a year. Simple careless driving hardly ever results in disqualification, which is quite a severe penalty, and rightly so.
It is true that because of a truly ghastly procedural blunder after the Lords’ amendment to Clause 20 was carried in the summer—whose fault it was I do not know—the power of Crown Courts to impose a prison sentence for this offence was not removed as had always been intended. Despite what the noble and learned Lord, Lord Lyell, said, I do not suppose that it is possible in this Session to do anything about that. But at least a quarter of a loaf is better than none.
Viscount Simon: My Lords, I think that the noble Earl, Lord Attlee, said that certain pressure groups have an axe to grind. I do not have an axe to grind, but noble Lords will recall that among various things that I do I am heavily involved with the traffic police.
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The noble and learned Lord, Lord Lyell, has said that the wrong message will be sent out, which of course is quite possible. But the other way of looking at it is that if this goes through as the Government want, the right message will be sent out and people will take more care with their driving and will not do the careless things that they do now.
Lord Berkeley: My Lords, I have listened carefully to some of the speakers on the Opposition Benches. I take from this that the definition of “careless” is that it is just a momentary lapse; that it does not really matter; that we are all careless at some stages in our lives; and that if our carelessness happens at the wrong moment and someone gets hurt or killed, it is very sad. And that is it: we certainly do not want to go to jail, which would be unheard of for a middle-class crime. I worry about this. If a person is driving a car or vehicle, it should not be any different from driving a train or flying an aeroplane. People are trained, although some training is more than others. In any event, a person is in charge of lethal equipment which could hurt not only you and your passengers, but other people. Whether that is careless or just bad luck, as some people might say, I do not know. I do not accept that just because a person had a momentary lapse, it does not matter, which is the impression that I am getting—perhaps wrongly.
The noble Earl, Lord Attlee, said that we have the best road safety record in Europe, which may be true, but we are still killing 3,500 people every year and heaven knows how many hundreds of thousands of people are being seriously injured. I do not accept that the Magistrates’ Association or PACTS, of which I am a member, have given opinions based on their personal sufferings. I know that other groups might do that, but those two organisations should be listened to because they are objective. I believe that if they have thought about it carefully and think the Government’s view is right, we should support them.
I support this provision, as I have all along. We should support anything which makes drivers think carefully, so that they have to concentrate the whole time they are at the wheel, looking for things that might possibly go wrong just around the corner or checking for people crossing the road or whatever—just as train and aeroplane drivers have to. We must get away from the amateur view that anyone can drive however they like. I certainly support the Government’s position on this.
Earl Attlee: My Lords, would the noble Lord, Lord Berkeley, like to see a train driver banned from driving if he skidded his train for about 50 metres?
Lord Berkeley: My Lords, I know of a case involving a particular train driver. One of his kids was ill. He was driving a train and he had forgotten to
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Baroness Gibson of Market Rasen: My Lords, I support everything said by my noble friend Lord Berkeley and I shall not repeat it. I have also listened carefully to other noble Lords. One Monday evening at twenty to nine I had a father. At a quarter to nine I did not have a father because he had been killed in a road accident. It may have been a little lapse on the part of the driver, but it was a great thing in a person’s life. I shall be supporting the Government.
Baroness Gardner of Parkes: My Lords, I am slightly puzzled about how the decision is made on which charge will be brought against a driver. If, for example, as in cases that we read about all the time, a driver backing out of his garage tragically kills his own much-loved child who somehow has got behind the car, would that person be charged with careless driving? It certainly should not be dangerous driving because there would have been no intention, but would a charge of careless driving be brought in a case like that where the last thing in the world the driver wanted to do was to harm someone they loved? If not, are we talking about someone whose mind is distracted for a moment? I am confused about the issue of carelessness and I would appreciate some clarification.
Lord Davies of Oldham: My Lords, as anticipated, this has been an interesting debate and it would be difficult for me to reply without undue length to every single point. On the question put by the noble Baroness, the circumstances she has identified would invite a series of other potential charges beyond careless driving. My noble friend Lady Gibson has made a very important contribution to the debate. It is of the greatest significance when a death is caused by people not taking sufficient care when in their motor cars. Further, my noble friend Lord Berkeley is absolutely right. I mentioned in my opening speech the interest groups that support the legislation. The Magistrates’ Association and the Parliamentary Advisory Council for Transport Safety are not motivated by emotion beyond the proper human emotion we all have when considering these matters, but their members have not been personally affected by these issues. They seek to influence and improve the law. I am happy to give way to the noble Earl, Lord Attlee.
Earl Attlee: My Lords, the Minister puts great weight on the decision reached by PACTS, which does an awful lot of good work. But how was the decision arrived at? Was it a decision reached by a vote of all the PACTS members? I attend meetings of the council, but I have never voted on this issue. Perhaps it was a small group of PACTS executives which made the decision.
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Lord Davies of Oldham: My Lords, it is not for me to go into the decision-making processes of groups such as PACTS, but let me say that it enjoys a high reputation because its members support what it does and the Government take seriously representations from that source. I sought to disabuse noble Lords of the notion that this is all based on emotion; the issues have been established on other grounds.
In moving the amendment the noble Lord, Lord Hanningfield, said that the punishment should fit the crime. Let me make one point absolutely clear: there is nothing about mandatory penalties in the Bill. The clause certainly proposes maximum penalties, but it would be for the courts to decide which is appropriate. It might be that a community penalty or fine is imposed. In cases where those are not considered appropriate, a custodial sentence may be passed. The courts will decide.
The noble and learned Lord, Lord Lyell, must accept that the Government have addressed themselves to the Bill which had been passed by this House. They take at face value, as they are bound to, what the law would be if the Bill was enacted and they had not effected any changes to what it contained when it was returned to them.
I have listened to what the noble and learned Lord said with the greatest care and I take his views very seriously, but let me make it absolutely clear that the amendment—and noble Lords should consider this seriously—would restrict the ability of magistrates’ courts to impose a custodial sentence but the Crown Court would still be able to impose a maximum sentence of five years. That is why I indicated that one of the difficulties which would occur if the amendment was carried would be that magistrates’ courts—although it is expected and hoped that they will deal with large numbers of these cases—the moment they had the slightest inkling that a serious penalty might be appropriate, would be more likely to pass cases on to the Crown Courts because they would not be able to deliver it. That is what the amendment would do it if were passed and those who vote for it—with all the best intentions in the world—would be creating what we regard as a serious weakness in the Bill.
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Lord Lyell of Markyate: My Lords, I am extremely grateful to the Minister. If the House were persuaded by the arguments that a prison sentence was inappropriate for careless driving, is it within its procedural power on the ping-pong to come back with a clause which would reflect that? I believe it is.
Lord Davies of Oldham: My Lords, I am dealing with the amendment before the House. It is not for me to enter into conjecture about what might be done at future stages.
If noble Lords went into the Lobby on the basis that there is a broad intention to which they subscribe but aware that the amendment will produce a nonsense which at some other stage ought to be tidied up, that would be acting in an irresponsible way. If we did that we would be continually living in a land of
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Lord Lyell of Markyate: My Lords, is the Minister really saying that if the Government believe an injustice is likely to be done he does not have to give his mind to it? I can quite understand if he gives his mind to it and says, “No, we believe this is right”, but to take advantage of what was obviously a slip and to do something which this House may well decide—I hope it does decide—would lead to an unjust result would seem to me to be wrong. Does the Minister agree?
Lord Davies of Oldham: My Lords, I indicated at the beginning that I knew the noble and learned Lord, Lord Lyell, and I would collide over this Bill on a matter of principle—and so we have; we are quite explicit about that. I have tried to explain the Government’s position as accurately as I can and he has ably explained his own.
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